Effort to block desegregation expert denied

No evidence witness biased, black students’ lawyers told

A court expert’s testimony and reports on desegregation efforts in the Pulaski County Special and Jacksonville/North Pulaski school districts will be allowed in hearings later this year on whether the districts are unitary and can be released from court supervision.

U.S. District Chief Judge D. Price Marshall Jr. on Wednesday denied the motion asking that Margie Powell’s testimony and her reports about the districts’ compliance with their desegregation obligations be excluded from the upcoming proceedings.

Marshall, the presiding judge in the 37-year-old federal school desegregation lawsuit, denied the motion made by attorneys for black students in the two districts at a status conference meeting with attorneys for all the parties in the long-running case. The class of all black students in the two districts are known as the McClendon/Ellis intervenors. They were formerly called the Joshua intervenors.

“I do not believe there has been an adequate showing that either Ms. Powell has deviated from the court’s directions on what her role is supposed to be or that she has become biased, leaning hard in one direction or another, ” Marshall said in a decision announced from the bench.

The judge did grant a request from Austin Porter Jr., the lead attorney for the intervenors, to divide what had been planned for about the past two years to be one hearing in July on unitary status for the two districts into two hearings.

“It is more important that we do this right and that we get it done right than it be done right now,” Marshall said about slicing the one hearing into two.

The court hearing on whether the Pulaski County Special district has complied with its desegregation plan will begin July 14. A hearing on whether the Jacksonville/ North Pulaski district qualifies for unitary status will be held in early to mid-October, Marshall concluded. Each of the hearings is expected to take at least a couple of weeks.

Marshall told the attorneys that during the July session he would like to

take time to tour newly constructed schools in the two districts — Mills High, Sylvan Hills High in the Pulaski County Special system, and Jacksonville High and Bobby Lester Elementary, and possibly the Jacksonville Middle School construction site, in the Jacksonville district.

In regard to construction, Jacksonville/North Pulaski attorney Scott Richardson told the judge that a dispute between the district and the state on state aid for replacement of the district’s Murrell Taylor and Bayou Meto elementary schools is unresolved, and he is doubtful of the district’s chances of success on appeal of the matter to the state commission.

Marshall had directed Powell last year to submit reports to him on the condition of school buildings in the Pulaski County Special and Jacksonville districts as well as on the equity of student discipline practices, student achievement, staffing incentives and their own monitoring of their desegregation efforts. All are provisions in the Pulaski County Special district’s long-standing, court-approved Plan 2000 desegregation plan.

The Jacksonville and Pulaski County Special districts are the two remaining defendant districts in the desegregation case. The Jacksonville district was carved out of the Pulaski County Special district in 2016 with the condition that the fledgling district must fulfill the same desegregation requirements as Pulaski County Special.

Porter and his co-counsel Robert Pressman of Lexington, Mass., told Marshall on Wednesday that Powell had “lost her neutrality” and favored the school districts in her preparation of the eight reports.

With few exceptions, Powell did not consult with the intervenors — who do their own monitoring of the districts — on their views about compliance, the two attorneys said. In the cases in which the intervenors did get to provide input to Powell, the information was not used in Powell’s reports, they said.

Porter told the judge that he did not take any delight in challenging Powell, who has been involved in the case for nearly 30 years, first as a monitor in the now closed federal Office of Desegregation Monitoring and then as the judge’s appointed desegregation expert.

“This is a very important case,” Porter said. “If there are any shortcomings, as we have seen with the construction of the Mills High project and the educational achievement gap that still persists with African-American children, that’s on our watch. And we will be held accountable to parents as to why those issues have not been addressed.”

Porter said he had been pleased in 2018 with Powell’s findings and her referee-like role in regard to deficiencies at Pulaski Special’s newly constructed Mills High as compared with Robinson Middle School. Since then, he said, Powell had moved from being neutral to be a cheerleader for the districts.

Pressman told the judge that he had given Powell a daunting assignment, but the way she carried it out “doesn’t pass muster under the standards you articulated.”

He called it inconceivable that the judge would ask for a summary of activities from just one side in an adversary process and that Powell’s relying on one side for information “doesn’t produce a fair picture of progress and deficiencies.”

Amanda Orcutt, an attorney for the Pulaski County Special district, and Richardson for the Jacksonville district, defended Powell’s work.

Orcutt said the court’s expert had substantially complied with the terms of her appointment, which was to monitor the districts and not the intervenors. She noted that Powell had continued her established practice of meeting with the districts without checking in with intervenors on every step of the way.

Orcutt also said it was “very late in the game” to claim that Powell is biased and attempt to disqualify Powell and her reports from the upcoming court hearings.

Richardson said that Powell has long been known to be independent-minded and someone who has a reputation for drawing her own conclusions.

He also argued to the judge that the intervenors typically “disagree with everything and find fault with everything. Essentially what you are hearing is that now that she has found favorable things about the districts, they find fault with her.”

In denying the motion to exclude Powell, Marshall told the attorneys for the different parties that he was not passing judgment Wednesday on the correctness of what Powell has written.

He said it was a court expert’s job to investigate, form opinions and testify.

“This latest iteration of that — when the court called for summary reports on each of the areas in which the districts are not unitary … is the most recent chapter of the kind of work Ms. Powell has been doing well for many years,” he said.

He also said Powell’s work is open to critique and he expects a full and vigorous cross examination from all the attorneys of the testimony that Powell gives at the upcoming trials. He will make a decision after that about what parts of her reports he finds persuasive.

“The court has not made up its mind about any of this,” he said about the desegregation compliance issues. “That is why we are having a trial.”

Participants in Wednesday’s status conference were significantly different than in past meetings with the judge. Porter has replaced the late state Rep. John Walker as the lead attorney for the intervenors. Walker died in October. Porter was joined by Pressman, Shawn Childs and Lawrence Walker.

Orcutt, Devin Bates, Jay Bequette and Cody Kees are now representing the Pulaski County Special district after the district’s longtime school desegregation attorney, Sam Jones, said earlier this year that he would no longer represent the district at trial because of health issues.